Overview / Current Situation

The Internet censorship regime in Australia comprises law and regulation at both Commonwealth and State/Territory Government level, apparently because the Australian Constitution does not appear to grant either level of government sufficient power to independently and fully regulate online content.

Commonwealth law applies to Internet Content Hosts ("ICHs") and Internet Service Providers ("ISPs"), but not to content providers/creators or ordinary Internet users.
The law requires Australian ISPs and ICHs to delete content from their servers (Web, Usenet, FTP, etc.) that is deemed "objectionable" or "unsuitable for minors" on receipt of a take-down notice from the government regulator, the Australian Communications & Media Authority ("ACMA") (formerly the Australian Broadcasting Authority ("ABA") prior to 1 July 2005).

State and Territory criminal laws apply to content providers/creators and ordinary Internet users.
Some States/Territories have laws enabling prosecution of ordinary Internet users and other content providers for making available material that is deemed "objectionable" or "unsuitable for minors" and/or for downloading content that is illegal to possess. The particular provisions of these laws vary among the States and Territories.

Although the Commonwealth Government's proposed legislation was watered down in 1999 prior to enactment, following extensive criticism by EFA and other organisations and individuals, it remains a draconian scheme unlike any existing or proposed laws in countries similar to Australia.

In March 2002, EFA undertook extensive research into the status of laws and government policy outside Australia and was unable to find any indication that any country broadly comparable to Australia (in terms of democratic political systems and cultures) has, or intends to introduce, Internet censorship laws as restrictive as either the existing Commonwealth legislation or the existing or proposed State/Territory laws.
See EFA's report Internet Censorship - law & policy around the world.

Although the Minister, Senator Richard Alston, claimed in a media release on 21 August 2002 that the Internet has been made safer as a result of the Commonwealth Government's Internet censorship regime, there is no evidence to support the claim. In fact, all indications are to the contrary.

The legislation has failed dismally insofar as its alleged objective of making the Internet safer for children is concerned. It has, however, resulted in Australian adults self-censoring their speech more than required in offline publications in Australia or paying overseas, instead of Australian, Internet Service Providers/Content Hosts to host their web pages. The restrictions on Australian sites send Australian money offshore because Australian adults visit overseas sites to access content equivalent to material that adults can legally purchase offline in Australia, including material that is legally sold in Unrestricted magazines.

EFA urges all who value freedom of speech and freedom to read to continue to lobby their Members of Parliament and Senators to support repeal of the legislation.

For more detailed information about the legislation and operation of the regime see:

EFA Reports, Analyses and Submissions

EFA's analysis sets out why mandatory ISP filtering would not be effective in protecting
children, whether or not it is, or becomes, both technically feasible and
technically practical. PC based filtering remains more effective than a national
mandatory ISP based filtering system, and that is most likely to remain the case
into the future.

EFA undertook a comprehensive review and analysis of the operation and (in)effectiveness Commonwealth scheme, in light of the Minister's admissions to the Senate that official Government reports contain statistical errors exaggerating the alleged effectiveness of the scheme.
Although the Minister, Senator Richard Alston, claimed in a media release on 21 August 2002 that the Internet has been made safer as a result of the government's Internet censorship regime, there is no evidence to support the claim. In fact, all indications are to the contrary. Detailed information is available in EFA's submission to the Department of Communications, Information Technology and the Arts ("DCITA") 'Review of the Operation of Schedule 5 to the Broadcasting Services Act 1992' which commenced in September 2002.

The Internet censorship scheme operates under a level of secrecy that has no parallel in the administration of Australian censorship policy of other media. EFA sought to obtain more information under Freedom of Information ("FOI") law, from the ABA and from the OFLC, with varying degrees of success. The ABA released some information requested and refused to release other information (including about content that was not determined by the ABA to be prohibited online), although similar information about classification of movies, publications and computer games (including banned material) has been made freely and readily publicly available for many years including, from the latter half of the 1990s, in the OFLC's online database of its classification decisions. On 27 June 2002, the Federal Government introduced proposed amendments to the FOI Act into Federal Parliament to increase the existing level of secrecy by exempting more information about administration and operation of the regime from disclosure under FOI. The Bill completed its passage through Parliament in September 2003 and was passed on the vote of the Coalition and four independent Senators. The ALP, Democrats and Greens sensibly voted against the changes.

Government Inquiries, Proposals, Policy

This section contains information about Commonwealth Government inquiries, proposals and policy. For information relative to State/Territory Governments, see the sections about each of the jurisdictions.

2005

"Senator COONAN-I thank Senator Barnett for his interest in this issue and for his question. Protecting children and families is a vital matter for coalition senators, and it is also something that Senator Fielding, the Leader of Family First, has raised with me on a number of occasions. The government has a three-pronged approach: we legislate, we regulate and we educate to protect all Australians, and particularly young Australians, from inadvertent dangers of the internet.
The Australian government already fund the internet safety agency NetAlert. We ban both X and RC material from being hosted by Australian internet service providers. We require all ISPs to provide filters at cost or below cost to consumers. I am pleased to say that some providers, including Optus, AOL and iPrimus, offer parental filtering controls to their customers at no extra cost. The evidence shows that the government's strategy is working.
The [email protected] study, released earlier this year, found that 35 per cent of respondents use internet filters. This has more than doubled since 2001, when 17 per cent of the survey of internet-connected households with a child aged under 18 reported using such software. This increase has been driven by a government-funded education campaign. It is why at the last election the government committed $2 million for the National Cybersafe Program.
...
There is interest in applying filters at the ISP level. This is an issue that the government have already examined, and we will continue to closely monitor this. Reviews conducted by my department have uncovered a number of practical difficulties in mandating the URL/IP-based filtering at the ISP level, including accuracy rates and the impact on broadband speeds. I am, however, awaiting some further advice on server level filtering based on technical trials. Of course, technology changes so quickly that we need to keep an eye on this. I encourage all parents who may be listening to get in touch with their ISPs to ask about filtering in the home and about ISP filtering. ..."

2004

"Senator COONAN-I thank Senator Harradine for this important question. The government has both a strong and a sustained record of cracking down on offensive and inappropriate content being hosted on Australian Internet service providers.
...
The government did consider mandatory filtering some years ago and reviewed this recently... It found, on closer examination, that mandatory filtering would be highly problematic. It would have the potential to simply choke the Internet and drive up costs unacceptably for consumers and small businesses without necessarily solving the problems of offensive content.
... simple filters are easily outsmarted by merchants of offensive content and that the kind of complex technologies needed to analyse every single item being downloaded were not considered feasible in our review. The review also estimated that the cost of this sort of filtering would be $45 million a year to begin with, falling to more than $33 million a year on an ongoing basis. The biggest issue - it is not so much the money - is that such an expensive scheme would not necessarily solve the problem and small to medium ISPs would simply be
driven out of business for little or no benefit. What does work is greater information and parental supervision, and those are the kind of programs that the government is promoting with the $30 million [National CyberSafe Program] initiative."

The government's review found, among other things, that (extracts from page 3 of the report):

"Filtering technologies have not developed to the point where they
can feasibly filter R-rated content hosted overseas that is not subject
to a restricted access system."

"Complex analysis filtering technologies are not practical in
a national proxy filtering system. However, due to developments in
search algorithms and server power, Uniform Resource Locator (URL) or
Internet Protocol (IP) addressed based filtering does appear
technically feasible at the ISP or server level."

However "There are a number of practical difficulties in mandating URL/IP based filtering at the ISP level, including accuracy rates and,
according to the Internet industry, impact on broadband. Ovum has
estimated that URL/IP based filtering would involve implementation
costs of approximately $45 million and ongoing costs of more than
$33 million per annum. Such costs could significantly impact on the
financial viability of smaller ISPs, in particular. Given the limited benefits of an ISP-level filtering system, the costs of a mandated requirement to filter do not appear justified."

2002

The Act required the Government to undertake a review of the scheme before 1 January 2003. The Department of Communications, Information Technology and the Arts ("DCITA") released an Issues Paper in September 2002 and invited comments from the public with a closing date for submissions in November 2002.

Amendments to the Freedom of Information Act 1982 were introduced into the House of Representatives on 27 June 2002. The amendments were designed to further prevent public scrutiny (and potential criticism) of the operation of the Internet censorship regime and of claims made by the Minister, the ABA and the OFLC. The amendments were without doubt the Government's reaction to EFA's efforts, which had been partially successful, to obtain information under FOI law about operation of the censorship regime. The Bill completed its passage through Parliament in September 2003 and was passed on the vote of the Coalition and four independent Senators. The ALP, Democrats and Greens sensibly voted against the changes.

Commonwealth Legislation

The Commonwealth Government's Internet censorship legislation came into force on 1 January 2000. It applies to Internet Content Hosts ("ICHs") and Internet Service Providers ("ISPs"), but not to content providers/creators or ordinary Internet users (whose activities are regulated by State/Territory legislation).

The Government introduced the Broadcasting Services Amendment (Online Services) Bill 1999 into the Senate on 21 April 1999. The Bill was rushed through the Senate and passed, with some amendments, on 26 May 1999 following a rushed Senate inquiry that totally ignored overwhelming industry and user opposition. The Bill was passed in the Senate with the support of the Government (Liberal/National Parties Coalition) and independent Senator Brian Harradine, a long-time pro-censorship advocate who then held the balance of power in the Senate (but would not after 30 June 1999 when recently elected Senators would take up their positions). Opposition parties (ALP, Democrats and Greens) voted against the Bill in the Senate. Debate on the Bill commenced in the House of Representatives on 21 June 1999, and the amended Bill was passed by the House (where the Coalition Government held the balance of power) along political party lines on 30 June 1999. (See also: A Brief History of Internet Regulatory Activity in Australia: 1994-2000.)

If the Bill had been passed without amendments, it would have required Internet Service Providers to, among other things, block adults' access to content on sites outside Australia on threat of fines for non-compliance. However, following widespread criticism, the proposed law was amended.

Complaints Based Regime

The Internet censorship regime is a complaints based system.

The government regulator, the Australian Communications & Media Authority ("ACMA") (formerly the Australian Broadcasting Authority ("ABA") prior to 1 July 2005), is empowered to investigate complaints made by Australian residents about Internet content that is, or is likely to be, prohibited. The ACMA is not required to trawl the Internet looking for content that may be prohibited. However, the ACMA is empowered to initiate investigations of its own accord without receiving a complaint. The ACMA has established an online complaint lodgement
system.

Definition of Prohibited Content

'Prohibited content' is material that has been classified and given one of the following classifications:

R18 (information deemed likely to be disturbing or harmful to persons under 18 years).
Content classified R18 is 'prohibited content' when it is Australian-hosted and access to it is not restricted by an ACMA approved adult verification system. The law does not cover R18 content that is hosted on overseas sites.

Classification Process

Classification/censorship decisions are made by applying Classification Guidelines established under the Commonwealth Classification (Publications, Films and Computer Games) Act 1995. The Act is part of a co-operative classification scheme, adopted by the Commonwealth and States/Terrorities, for films, publications and computer games (although they have each gone down somewhat different paths in their implementation of the co-operative scheme).

In developing Internet censorship laws, years after the establishment of the offline classification scheme and guidelines, the Commonwealth and State/Territory Governments decided that Internet content comprised of text and static images would be classified as if it were a cinema movie using the Classification Guidelines for Films, which are more restrictive than the Guidelines for Publications. Hence, when Internet content is identical to an article published in an offline magazine or book, the online and offline copies are classified under different Classification Guidelines. An article may be legal offline under the Publications Guidelines, but illegal online when classified under the Film Guidelines.

Classification decisions are made by the Office of Film and Literature Classification ("OFLC") in relation to Australian-hosted Internet content. If the content is hosted outside Australia, the ACMA is empowered to guess what classification the OFLC would give to the content. (The ACMA is required by law to have Australian-hosted content classified by the OFLC but is not required to have overseas-hosted content classified by the OFLC.).

When content has been determined to be prohibited, or potentially prohibited, the ACMA issues a take-down notice and/or notifies approved filtering/blocking software makers.

Take-down Notices & Notifications to Filter Makers

Prohibited Internet content is treated differently under the law, depending on whether it is hosted in Australia or outside Australia and on the classification category.

Content hosted in Australia:
The ACMA issues take-down notices to ISPs and other Internet Content Hosts requiring them (under threat of fines) to delete content on their servers (e.g. Web, Usenet and FTP) that has been determined to be prohibited or potentially prohibited content. This includes content classified R18 (unless access to the R18 content is restricted by an ACMA approved adult verification system) and content classified X18 and RC (whether or not access to the content is restricted to adults).

If the content has been classified by the OFLC and found to be prohibited, the ACMA issues a final take-down notice. The ACMA also issues interim take-down notices concerning potentially prohibited content (which, in relation to the take-down notice system, is content the ACMA considers is likely to be classified X18 or RC, but not content likely to be R18) pending classification of the content by the OFLC.

The ACMA has issued a number of takedown notices to sites hosted in Australia. At least one such site has subsequently relocated to the USA, whilst retaining its original URL in the .au domain. The number of sites that have simply moved overseas is unknown to the Australian public. Classification decisions regarding Internet content are a government secret, unlike classification decisions concerning offline publications, films, videos and computer games.

ACMA Approved Restricted Access System for content classified R18

The ACMA (formerly ABA) approved restricted access system for R18 content requires sites, including non-commercial sites and those who charge no fee for access, to collect personal information from visitors to their site, such as credit card details or a copy of their driver's licence or birth certificate, before granting them access to content classified R18.

The R18 classification includes a broad range of information that may be "disturbing" or "harmful" to minors. It includes "adult themes", but does not permit non violent sexually explicit material (X18 classified) which is subject to take-down from Australian sites whether or not access is restricted to adults.

The Australian Broadcasting Authority released
its
decision on adult verification systems in early December 1999. This was the ABA's final determination on procedures that sites hosting R18 classified material in Australia must implement to (supposedly) verify that site visitors are at least 18 years of age. The determination was an improvement on the ABA's initial draft issued in late October 1999 but EFA believes the restrictions are still onerous, privacy-intrusive and chill freedom of speech. EFA's response to the ABA Consultation Paper on Restricted Access systems outline our concerns about such systems.

Use of Filtering/Blocking Products

Use of filtering/blocking software by Australian Internet users is voluntary, notwithstanding that the phrasing of the ACMA approved IIA Industy Code of Practice seems to imply otherwise.

Australian Internet Service Providers are not required by law to install filtering/blocking software, nor block access to any sites. Users are not required by law to use filtering software, nor purchase any such product that is offered or made available by an ISP.

(If the proposed legislation tabled in 1999 had been enacted without amendments, it would have required Internet Service Providers to block adults' access to prohibited content on sites outside Australia on threat of fines for non-compliance. Following widespread criticism, the proposed law was amended to include provision for an alternative access prevention method, i.e. other than ISP blocking of overseas hosted material at the server level. As a result an Industry Code of Practice was developed and approved by the ACMA (formerly ABA) which requires ISPs to provide filtering software to users, but users are not required to use same.)

Industry Codes of Practice

The legislation required ISP/ICH associations to develop Industry Codes of Practice for approval by the ACMA and, in the absence of industry developed codes being approved by the ACMA (or the ACMA considering a code is not providing adequate comunity safeguards), empowers the ACMA to develop compulsory industry standards. For more information, see Industry Codes of Practice.

NetAlert

The Commonwealth Government established a claimed-to-be independent body
called NetAlert Limited (a Commonwealth Government company with directors appointed by the Commonweath Government) which had a budget of $5 million in the first year (2000) and a brief to provide advice to the community about managing children's access to the Internet.

State and Territory Legislation

Legislation enacted by States and Territories enables prosecution of Internet users for making available material that is deemed "objectionable" or "unsuitable for minors" and/or for downloading content that is illegal to possess.

As at December 2002, the particular provisions of the laws varied among the States and Territories.

Some States/Territories have had Internet specific censorship laws in place since 1996, some enacted laws in 2000/2001, some had such laws pending and others had stated they had no intention of enacting such laws. (Note: For many years, all States and Territories have had laws of general application prohibiting distribution and possession of material involving child pornography, whether or not they have enacted Internet specific censorship laws covering other types of material).

Information about Internet censorship laws, and/or proposed legislation, in each State and Territory is below:

Standing Committee of Attorneys-General/Censorship Ministers

State and Territory Censorship Ministers, a partial sub-set of the Standing Committee of Attorneys-General (SCAG), have been considering draft model censorship legislation for online content since 1996.

Apparently, the States and Territories have failed to reach agreement on consistent legislation across jurisdictions. Victoria, Western Australia and the Northern Territory already had legislation in place which differs from the draft model legislation. Concerns about the draft model legislation are likely in the A.C.T, which has the most liberal laws in relation to publication and distribution of X-rated material in video form.

As at November 2002, only two States, South Australia and New South Wales, had indicated intent to introduce laws substantially similar to the draft model legislation.

Australian Capital Territory

In September 1999, the A.C.T Attorney General issued the draft model legislation (proposed to amend the above Act and censor the Internet) for public comment, but there had been no further developments by December 2002.

Previous activities/proposals in NSW

While the ABA investigation into regulation of online content was proceeding during the first half of 1996, the NSW Attorney-General announced in April 1996 that NSW would take the lead in developing model State-based laws.

Despite requests from many quarters, the Attorney-General refused to release the draft legislation for comment. However, sufficient details were made available to cause a flurry of media activity. Some of this 1996 model legislation resurfaced in 1999 as model legislation to complement the Commonwealth Broadcasting Services Act.

EFA managed to obtain a leaked copy of the draft late in May 1996. The provisions of this legislation were quite draconian and led to an EFA march on the NSW Parliament in May 1996.

EFA mounted the 1996 STOP Campaign immediately following the march. This campaign focused on lobbying the various State Attorneys-General prior to the meeting of the Standing Committee of State and Commonwealth Attorneys-General in July 1996.

Queensland

The Queensland
Classification of Computer Games and Images Act 1995 came into effect on 1 July 1995. This confusing legislation differed from that passed in other States in that it included a very broad definition of images (including text)
within the meaning of the term computer game.

Although purportedly not intended to cover the Internet, one of the first cases
where charges were laid under this Act involved an Internet user. However, after lengthy proceedings the user was cleared of all charges after the judge ruled that the Act did not apply to content on on-line services (although it does apply to material on users' computer disks).

The SA Internet censorship legislation is based on the 1999 draft model legislation, but is not identical, nor is it identical to the NSW Act that was also based on the draft model. Among other things, it makes it a criminal offence to make available to adults information that is unsuitable for minors. More detailed information is available on EFA's page about the SA legislation.

Tasmania

The Tasmanian Classification (Publications, Films and Computer Games) Act came into effect on 1 January 1996 and did not include provisions regulating content on online services.

Victoria

The Victorian
Classification (Publications, Films & Computer Games) (Enforcement) Act 1995 came into effect on 1 January 1996. This legislation provides for harsh
penalties for on-line "transmission" of material that is unsuitable for a minor. In many respects, this legislation is as draconian as that proposed by the NSW government in 1996. It makes the same fundamental error of treating on-line services as being similar to broadcasting. The Victorian legislation is regarded by many commentators as being unenforceable.

Western Australia

The WA
Censorship Act came into effect on 1 November 1996, and covers both offline material and Internet content, flying in the face of the Commonwealth Government's then attempts to confine any new Internet legislation to the Commonwealth sphere.

The WA legislation is substantially different from the Commonwealth legislation and legislation in other States. For example, under the WA Act it is not illegal to make R18 and X18 content available to adults online, although under Commonwealth law the ACMA is empowered to order such content be taken down. However, in other ways the WA legislation is more restrictive than laws in other jurisdictions. For example, it makes possession of any content classified RC a criminal offence (while laws in other States only prohibit possession of the sub-set of RC content that involves child pornography).

Under the WA Act, police do not even need a warrant to search the premises of Internet Service Providers, which obviously includes all records, logs,
private E-mail messages and other data contained on the provider's system.

EFA Anti-Censorship Campaigns

This section generally contains links to information regarding EFA's past anti-censorship censorship campaigns. It may not yet contain information about a current EFA campaign which, if any, will be listed on EFA's home page.

Industry Codes of Practice

The three main groups representing Internet Service Providers (ISPs) in Australia have developed Codes of Practice in response to either Commonwealth Government legislative demand, or industry self-regulation proposals by State Governments. EFA has had considerable objections to the Internet Industry Association ("IIA", formerly INTIAA) Code, commencing with the first draft in 1996.

In September 1999, the IIA released its
Draft Code of Practice Version 5.0 which included sections designed to comply with the Commonwealth Internet censorship legislation. This code required ISPs to provide filtering software to users as a means by which ISPs could comply with the Commonwealth Act, even though the Act did not appear to endorse this as an "alternative access prevention method". The question of whether the use of filters was intended to be mandatory or voluntary was not clear and EFA submitted a response to the Code which criticised this and a number of other aspects.

In December 1999, the Australian Broadcasting Authority approved the IIA Code of Practice version 6.0 which was purely concerned with content regulation. This version included a list of "Approved Filters" which ISPs were required to "provide for use, at a charge determined by the ISP".

Despite the phrasing of the IIA Code, use of filtering software by Australian Internet users is voluntary. Users are not required to use filtering software, nor purchase any such product unless of course they wish to use same.

The list of "Approved Filters" in the IIA Code V6.0 was based on a CSIRO study commissioned by the government in November 1999. This report entitled
Access Prevention Techniques for Internet Content Filtering
was released publicly in early January 2000. The study made no attempt
to evaluate the effectiveness of the filter products. The criteria for
inclusion in IIA's list of "Approved Filters" seemed to be based purely
on an undertaking by the product supplier to incorporate URLs notified
by the ABA in their filter product blacklists.